A (Children) [2012] EWCA Civ 1278

Appeal against a finding that a father was responsible for fatal injuries caused to a baby.

Jackson J had heard the matter at first instance. In giving judgment His Lordship had first eliminated the mother as a potential perpetrator before going on to consider the father's position, which was that the child's elder brother, C, was a possible perpetrator. His Lordship concluded that the father was an unconvincing witness and after directing himself in accordance with R v Lucas, went on to reject the father's case and find that it was "vanishly improbable" that C was the perpetrator. By a process of elimination His Lordship thereby found that F had caused the child's injuries.

The father appealed the finding, relying in part on new evidence, being police records relating to an issue in the case and also on a more recent event in the life of C, in which he had caused an injury to a carer. The father also submitted that Jackson J had effectively reversed the burden of proof by finding that the father was the perpetrator based only on a process of elimination.

Thorpe and Black LJJ both gave judgments, finding that Jackson J's conclusion was well supported by evidence and acceptably reasoned, and therefore that the appeal should be dismissed. Thorpe LJ also observed that Jackson J would be bound to have regard to the subsequent developments at the second stage of the trial and that it would accordingly be open to him to reconsider the earlier findings if necessary.

2. Perhaps more striking was Mr King's reliance on a much more recent event in the life of B's older brother, C, who was born on 17 August 2006. The incident in question, which occurred well after the trial, involved a tantrum on the part of C, during the course of which he lashed out a kick from a prone position which struck a carer on the shoulder and caused her what was at first thought might be a broken collar bone but which fortunately turned out only to be a severe bruise. But McFarlane LJ then went on to consider the structure of the judge's reasoning of his expressed conclusion that it was the father alone who had perpetrated the injury. So Mr King this morning has very rightly concentrated on that point and he has submitted forcefully and skilfully that as a matter of law the judge evidently misdirected himself in his approach. Mr King says that had he correctly and fully applied the authority of Re S B (Children) [2009] UKSC 17 he would not have expressed himself as he did in reaching his primary conclusion.

3. So I would like to focus on what is the comparatively narrow band within the judgment upon which Mr King has focussed. The trial below was extensive, as the judge said in paragraph 26:

"During the course of 13 days I read the relevant documents contained in five files and heard evidence from the following witnesses."

And then he lists under the subheading "Doctors" seven individuals, under the heading "Ambulance" two, under the heading "Police" five, one from the school, one social worker and both parents. C, the eldest child, and J, the surviving twin, were represented by separate guardians.

4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts. That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs. In paragraph 28 he said:

"Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17."

6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading "Responsibility for B's injuries". He considers first the position of B's mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:

"I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred."

7. In paragraph 172 he turned to consider the father's position, saying:

"I turn to consider whether F's explanation that C caused B's injuries is credible. If it is not, the inescapable conclusion is that they were caused by F."

And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested. There are 22 subparagraphs of such factors.

8. In paragraphs 174 and 175 he considered the father's credibility generally as well as specifically, and he concluded that the father was an unconvincing witness. However, in paragraph 176 he said:

"176. In assessing F's evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries. Lies may be told for other reasons. The burden of proving responsibility remains on those that allege it."

9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation. In paragraphs 178 and 179 he then states and explains his fundamental conclusion. He said:

"178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B's injuries. A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole. I reject F's case.

179. I find that F caused B's injuries. I reach this conclusion by eliminating the only possible alternative and by rejecting F's account."

10. Now Mr King's principal criticism is of paragraph 172, which I have already cited. He submits that this amounts to an implicit reversal of the burden of proof. The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited. It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father's explanation that C caused B's injuries was a real possibility -- was it plausible? -- and that was certainly a permissible and indeed a sensible approach.

11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination. He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion. I see that that submission is also open to Mr King given that the judge has specifically said:

"I find that father caused B's injuries. I have reached this conclusion by eliminating the only possible alternative."

12. He might have put alternative into the plural but I do not think that that is fair to the judge overall. He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned. Mr King has said that there was no medical evidence to force the judge's conclusion and that there was no other evidence to force the judge's conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility.

13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission.

14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial. It may be that he will be persuaded to admit the police records that Mr King highlights. In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced. That is something that requires no further speculation. There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development. There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development. Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material. With that observation I would dismiss this appeal.

Lord Justice Toulson: 15. I agree.

Lady Justice Black: 16. Although a considerable number of detailed points feature in the appellant's grounds of appeal, a significant focus of his appeal has been that the judge approached his conclusion by an inappropriate route, putting on the father the burden of proving that he did not injure the baby rather than looking to see whether it was established on the balance of probabilities that he did. It is that argument that I now address.

17. The spotlight has been placed on paragraph 172 of the judgment, which is relied upon as a fundamental part of the argument. I will not rehearse that or indeed subsequent passages from that section of the judgment because they feature in my Lord's judgment. It is important to read a judgment as a whole. The judge set out the law initially at paragraphs 28 and 29. In paragraph 28 he clearly stated that the burden of proving a fact such as this was on the person seeking a finding to that effect, so here the local authority. He recorded that the proof had to be on the basis that it was more probable than not that the event had occurred. No criticism is or could be made of these propositions.

18. Paragraph 172 forms part of a passage that is headed "responsibility for these injuries". First, the judge finds that the mother was not present when B was injured; it follows that she did not injure B. That is not challenged by anyone. The judge then commences his consideration of the remaining possibilities as to who injured B (which of course was either the father or C) with paragraph 172. At paragraph 173 he lists the circumstances that would have had to combine for C to have injured B. The judge has been taken to task on this paragraph but the arguments advanced on behalf of the father do not undermine in my view what the judge there said.

19. Paragraph 174 shows that the abstract consideration of whether C could have injured B was not the only element in the judge's consideration. The judge went on to look at the matter from another angle, that is, through his evaluation of the father's evidence. In paragraph 174 he considered the quality of the father's evidence and went on to find him unconvincing and his evidence unsatisfactory, setting out in paragraph 175 examples of why this was. He gave himself a form of Lucas direction at paragraph 176 reiterating that the burden of proving responsibility is on those who allege it.

20. Paragraph 178 is important. In it the judge says that his ultimate conclusion is that there is "no real possibility" that C caused B's injuries. For me this paragraph illuminates what the judge was setting about doing from paragraph 172 onwards. When he used the word "credible" in paragraph 172 I think he may equally have said "possible". He was looking, as paragraph 178 shows, to see whether there was a real possibility that C caused the injury. He had done the same in relation to the mother already at paragraph 170 and 171 and no complaint is made about the approach in that context.

21. In his consideration from paragraph 172 onwards the judge ranged across the entirety of the evidence. In part this involved a consideration of the degree of probability of the various events that would have had to take place for C to have caused the injury, but he then proceeded to his consideration of the father's evidence as to what happened that evening. In so doing, he was clearly considering the entirety of the evidence; we can see that from the fact that he said that the possibility that C caused the injury, which was remote on the medical evidence alone, was "vanishingly improbable" in the light of the evidence as a whole. He said that he rejected the father's case and found that the father caused the injuries. He said at paragraph 179 that he reached that conclusion by eliminating the only possible alternative and by rejecting the father's account.

22. Reviewing that entire passage in the judgment and reminding myself of paragraph 28, I do not see the judge's approach as in any way a reversal of the burden of proof or as requiring the father to prove anything, whether that C was responsible for the injuries or that he himself was not. We can see the judge considering all of the material evidence in order to see if the local authority had proved their case on the balance of probabilities. That determination necessarily involved evaluating the inherent possibility or probability of the various potential explanations for what had happened; that is part of the process of fact-finding in cases such as this. The judge found, for strong and unassailable reasons based on the entirety of the evidence, that it was vanishingly improbable that the child was responsible and he was left with only one other possibility. That was material to his decision but he did not leave it at that; he also assessed the father's evidence, as he told us at paragraph 179, and it can be seen therefore, lifting one's eyes from individual passages in the judgment, that overall he was intent on fulfilling the task which he had set himself of finding what was established on the balance of probability by the local authority.

23. For those reasons I would therefore dismiss the appeal. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this.